McDaniel v. State, 35134

• Decision Date: 27 September 1954
• Docket Number: No. 35134,No. 2,35134,2
• Citation: 85 S.E.2d 490,91 Ga.App. 196
• Parties: McDANIEL v. The STATE
• Court: Georgia Court of Appeals

Page 490

85 S.E.2d 490

91 Ga.App. 196

McDANIEL v. The STATE.

No. 35134.

Court of Appeals of Georgia, Division No. 2.

Sept. 27, 1954.

Rehearing Denied Nov. 30, 1954.

Syllabus by the Court.

The evidence is sufficient to sustain the verdict of voluntary manslaughter.

This case presents the second trial of the defendant following the same transaction. At the first trial the defendant was convicted of murder and sentenced to the penitentiary for life. That conviction was appealed to the Supreme Court in June, 1953. The case was reversed. See McDaniel v. State, 209 Ga. 827, 86 S.E.2d 500. When the case was called for retrial, it was impossible to obtain a jury in Quitman County, Georgia, where the homicide occurred, and the case was transferred by consent to Randolph County Superior Court. On the trial in the instant case the jury returned a verdict of voluntary manslaughter. The defendant filed a motion for a new trial on the statutory grounds only, that is, that the evidence was insufficient to support the verdict of voluntary manslaughter. The court overruled this motion and on this judgment the defendant assigns error here.

Counsel for the defendant in his brief and argument states that the best statement of the facts of the case is that statement made by Justice Head in McDaniel v. State, supra. Counsel further states: 'The evidence upon the former trial and the present trial was substantially the same; no material variance whatsoever.' It will be noted that the Supreme Court reversed the trial court on the first trial on the ground that the jury would have been authorized under the evidence to have found the defendant guilty of voluntary manslaughter, and the judge should have so charged. Counsel for the defendant in the instant case was counsel for the defendant in the first trial. In the first trial counsel for the defendant requested the court to charge voluntary manslaughter on the theory of mutual combat. The Supreme Court held that voluntary manslaughter on the theory of mutual combat was not involved, under the evidence before the Supreme Court at that time. Counsel admits that the evidence before us is substantially the same as then with 'no material variance whatsoever.' The Supreme Court also held that under the evidence the jury would be authorized to find, among other things, that the defendant killed the deceased at a time when the deceased was attempting to commit an injury on the defendant, less than a felony, to wit, a misdemeanor--stabbing. It is true that on the second trial the sheriff in cross-examination testified that the knife which was found near the body of the deceased was a knife with a blade about 4"' long and a handle the same length. The Supreme Court used the words 'small knife.' There were photographs of the deceased and of the knife. The knife was lying near the deceased in the photograph. The evidence as to the pictures was before the jury, before the Supreme Court, and is before this court. The evidence also revealed that, when one of the officers picked the knife up, the handle of the knife had no rivet with which to hold the blade in place and the knife fell apart, and further that the rivet had been out for some time. We will not relate further details of the evidence but refer to the statement of facts related in McDaniel v. State, supra, when this case was before the Supreme Court.

S. B. Lippitt, Albany, W. E. Taylor, Jr., Cuthbert, for plaintiff in error.

R. A. Patterson, Sol. Gen., Joe M. Ray, Cuthbert, for defendant in error.

GARDNER, Presiding Judge.

1. There is no exception to the charge of the trial court. The judge charged correctly, fully and clearly the law with reference to murder, justifiable homicide, the principle of law involving reasonable fears, apparent necessity for the taking of human life, and also voluntary manslaughter in compliance with the decision of the Supreme Court, as well as the law with reference to verdicts of guilty or not guilty on all phases of the case; charging in part as follows: 'Manslaughter is the unlawful killing of a human creature without malice, either express or implied, and without any mixture of deliberation whatever, which may be voluntary upon a sudden heat of passion, or involuntary, in the commission of an unlawful act, or a lawful act without due caution and circumspection. In all cases of voluntary manslaughter, there must be some actual assault upon the person killing, or an attempt by the person killed, to commit a serious personal injury on the person killing, or other equivalent circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice, either express or implied. Provocation by words, threats, menaces or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder. The killing must be the result of that sudden, violent impulse of passion supposed to be irresistible, for if there should have been an interval between the assault or provocation given and the homicide, of which the jury in all cases shall be the judges, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge and be punished as murder. Serious personal injury as used in this section means injury greater than a provocation by mere words, and less than a felony. Justifiable homicide is the killing of a human being by commandment of the law, in the execution of public justice, by permission of the law in the advancement of public justice, in self-defense, or in defense of habitation, property or person against one who manifestly intends or endeavors by violence or surprise, to commit a felony or either, or against any person who manifestly intends and endeavors in a riotous or tumultuous manner to enter the habitation of anyone for the purpose of assaulting or offering personal violence to any person dwelling or being therein. By a felony is meant an offense for which the offender on conviction would be liable to punishment by death or imprisonment for the offense, in the penitentiary. All other offenses against the penal law of this State are classed as misdemeanors. I charge you further, that a bare fear of any of those offenses, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable man that his life was in danger or some serious personal violent injury inflicted upon him, and acting in good faith, he shot the person named in the indictment. Shooting in a spirit of anger or revenge would amount to murder. The punishment for voluntary manslaughter is not less than one year nor more than twenty years imprisonment in the penitentiary. Should you convict the defendant of that offense, voluntary manslaughter, then it would become...